Kitching v Queensland Commissioner of Police
[2010] QSC 443
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- Unreported Judgment
- Kitching v Queensland Commissioner of Police[2010] QSC 443
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Kitching v Queensland Commissioner of Police[2010] QSC 443
Kitching v Queensland Commissioner of Police[2010] QSC 443
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 26 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 July 2010; 7 July 2010; 2 August 2010 |
JUDGE: | Peter Lyons J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ISSUES – where the applicants were partially successful in their application – where the applicants seek an order for their costs – where the second and third respondents contend that an order should be made in their favour in respect of one part of the applicants’ claim – where the applicants contend that no order should be made in respect of the costs of some parts of the litigation – whether the usual order as to costs should be made in the applicants’ favour Uniform Civil Procedure Rules 1999 (Qld), r 681, r 684 Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 81 ALR 166, considered Cretazzo v Lombardi (1975) 13 SASR 4, considered Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered Todrell Pty Ltd v Finch (No. 2) [2008] 2 Qd R 95; [2007] QSC 386, cited Waterman v Gerling Australia Insurance Co Pty Ltd (No. 2) [2005] NSWSC 1111, considered |
COUNSEL: | T Carmody SC with T Gardiner for the applicants M Hinson SC with A Scott for the first respondent Kelly L F SC with J Allen for the second and third respondents |
SOLICITORS: | Byrne Legal Group for the applicants Crown Law for the first respondent CMC Official Solicitor for the second and third respondents |
[1] On 19 August 2010 I gave judgment in this matter, the effect of which was that the applicants were partially successful. The applicants now seek an order for their costs. No order is sought against the first respondent, perhaps in part as a reflection of the position which he adopted at the substantive hearing. The application for costs is resisted by the second and third respondents, who contend that an order should be made in their favour in respect of one part of the applicants’ claim; and that no order should be made in respect of the costs of some parts of the litigation.
Background
[2] On 17 June 2010 the third respondent (CMC) published a report reviewing the investigation by the Queensland Police Service (QPS) of the death of an aboriginal man whilst in custody on Palm Island in November 2004 (CMC Review). The applicants had been involved in the initial investigation into this death. The CMC Review included a requirement (CMC requirement), addressed to the first respondent under the Crime and Misconduct Act 2001 (Qld) (CM Act), that the first respondent report within 14 days about the outcome of his consideration of the CMC’s recommendations, which included recommendations that consideration be given to commencing disciplinary proceedings against each applicant.
[3] Shortly afterwards, the applicants commenced these proceedings, initially seeking injunctive relief. The application was listed for hearing on 6 July 2010. Given its nature, there was some debate between the solicitors for the parties about steps to be taken prior to the hearing. On 28 June 2010 the solicitors for the second and third respondents brought on an application for directions, which resulted in the parties agreeing to directions, and to an order that the costs of the application be reserved.
[4] The hearing before me commenced on 6 July 2010. Shortly after the hearing adjourned at the end of that day, the CMC issued a press release. That document pointed out that the CMC had not received a request from the first respondent for an extension of time for complying with the requirement, and no application had been made in relation to the time for compliance with the requirement during the hearing which had been held that day. The press release also pointed out that the CMC had extended the time for compliance with the CMC requirement until the close of business on 6 July 2010. That resulted in an application made urgently that evening by the first respondent, seeking, unusually, an injunction restraining him from complying with the CMC requirement until midday the following day. Not surprisingly, the application was made on very short notice. The applicants were represented at it by Junior Counsel, their Senior Counsel not being able to be contacted in sufficient time to enable him to attend. The applicants supported the first respondent’s application, and in addition sought an order in terms of paragraph 6 of the Amended Originating Application (AOA, discussed below). I granted the relief sought by the first respondent, but not the additional order sought by the applicants.
[5] The hearing continued on 7 July 2010, with further submissions made orally on 2 August 2010.
[6] At this point, it is convenient to identify the relief sought by the applicants at the hearing, set out in the AOA:
“Against the First Respondent
1. A declaration that the first respondent is disqualified from personally acting on recommendations concerning the applicants made in the CMC Review of the Queensland Police Service's Palm Island in (the CMC Review) and or giving any personal considerations to commencing disciplinary proceedings for misconduct against either applicant on the common law ground of apprehended bias.
2. An injunction restraining the first respondent from personally acting on recommendations concerning the applicants made in (the CMC Review) and or giving any consideration to commencing disciplinary proceedings for misconduct against either applicant.
3. An injunction restraining the first respondent or his delegate from complying by the 2nd July, 2010 or at all with the third respondents requirement that he report back to it with a proposed course of disciplinary action against the applicants within 14 day.
Against the Second Respondent in the event order 6 is not made
4. An injunction restraining the second respondent from participating in any decision by the third respondent about assuming responsibility and completing the investigation of the Queensland Police Services Palm Island Review and/or prosecuting the first and second applicants for official misconduct in the Queensland Civil and Administration Tribunal (QCAT)
Against the Third Respondent
5. A declaration that the third respondent's requirement, in the CMC Review the Queensland Police Service's Palm Island Review, that the respondent report within 14 days as to the course of disciplinary action he intended to take against the first and second applicants, is not binding on the first respondent.
6. An injunction restraining the third respondent from assuming responsibility for and completing the investigation of the Queensland Police Service's Palm Island Review and/or prosecution either applicant in QCAT for official misconduct.
Costs
8. The First and Third Respondents pay the Applicants costs of the Application, or as the case may be.”
[7] I made a declaration which in substance reflected the declaration sought in paragraph 1 of the AOA. I refused to make a declaration reflecting that sought in paragraph 5 of the AOA.
[8] On the second day of the hearing, the applicants and the second and third respondents reached agreement about undertakings to be given by the second and third respondents, which would resolve the application for the relief sought in paragraphs 4 and 6 of the AOA, on the basis that there be no order for costs in relation to those paragraphs. It is therefore unnecessary to make any order for costs in respect of them.
[9] The attitude of the first respondent made it unnecessary to grant injunctive relief. That resulted in it being unnecessary to deal separately with paragraphs 2 and 3 of the AOA. It should be noted that orders sought in paragraph 2, and to some extent paragraph 3, were consequential on the declarations sought in paragraph 1. However, to some extent paragraph 3 might also be characterised as seeking relief incidental to the declaration sought in paragraph 5.
[10] Before turning to the matters in issue, it is convenient to note the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)
Rules relevant to the application
[11] The UCPR include the following:
“681 General rule about costs
(1) Costs of a proceeding, including an application in a
proceeding, are in the discretion of the court but follow the
event, unless the court orders otherwise.
(2) Subrule (1) applies unless these rules provide otherwise.”
“684 Costs of question or part of proceeding
(1) The court may make an order for costs in relation to a
particular question in, or a particular part of, a proceeding.
(2) For subrule (1), the court may declare what percentage of the
costs of the proceeding is attributable to the question or part of
the proceeding to which the order relates.”
Consequences of applicants’ partial success
[12] Consistent with r 681, the order for costs which is usually made is that a successful party is entitled to its costs. In part, the basis for this is identified in the following statement made by McHugh J in Oshlack v Richmond River Council:[1]
“The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or defendant. … The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.” (citations omitted)
[13] His Honour noted that this also had the beneficial effect of discouraging unnecessary litigation. He identified the limited exceptions to this approach as generally being the consequence of misconduct relating to the litigation, or the circumstances leading up to it.[2]
[14] The usual order as to costs is regularly made in favour of a party who succeeds in the litigation, notwithstanding that the success of that party is less than complete. It may be made, even if that party fails in a claim advanced by it.[3] Additional reasons for making the usual order as to costs where a party is only partially successful are identified in passages from earlier judgments, cited by Chesterman J (as his Honour then was) in Todrell Pty Ltd v Finch (No. 2)[4] The first is from Cretazzo v Lombardi,[5] where Jacobs J said:
“… trials occur daily in which the party, who in the end is wholly … successful nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to a decision of the case … .”
[15] The second is from Australian Conservation Foundation v Forestry Commission of Tasmania,[6] where Burchett J said:
“A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks and every reasonable point along the path of assault.”
[16] While these two passages do not directly deal with the position of a party who has been unsuccessful in respect of one of its claims, the considerations on which they are based demonstrate that there may be good reason not to deprive a partially successfully plaintiff or applicant of the benefit of the usual order as to costs.
[17] Nevertheless, r 684 confers a discretion on a court to take a different course. Some attempt at the reconciliation of the positions reflected in rr 681 and 684 is apparent from the following statement of Brereton J in Waterman v Gerling Australia Insurance Co Pty Ltd (No. 2):[7]
“The starting point is that the plaintiff, having been successful, is entitled to his costs. It is for the defendants to establish a basis for departing from that rule. A successful plaintiff who has failed on certain issues may be deprived of costs on those issues, or even ordered to pay the defendant’s costs of them. But this course, while open, is one on which the court embarks with hesitancy. …(a number of authorities are then cited). From these cases emerge consistent themes that:
- Justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case;
- But it may be appropriate to award costs of a separate issue where a clearly definable and severable issue, on which the otherwise successful party failed, has occupied a significant part of the trial.”
[18] It is therefore apparent that a party who enjoys overall success in litigation may nevertheless not have the benefit of the usual order as to costs where that party was unsuccessful in respect of a clearly definable and severable issue, which has occupied a significant part of the trial. However, it is clear that that circumstance provides an occasion for the exercise of the discretion, but does not determine the outcome.[8] In such a case, it remains necessary to consider the circumstances generally, including the significance of the factors which favour the making of the usual order as to costs.
[19] In the present case, the applicants’ primary concern was to ensure that the first respondent did not personally make a decision in response to the requirement of the CMC. The relief sought in the originating application (ignoring relief referable to paragraphs 4 and 6 of the AOA) was simply an injunction restraining the first respondent from acting on the recommendations in the CMC review. That is consistent with the letters from the applicants’ solicitor to the first and second respondents of 18 June 2010. The material in evidence at the substantive hearing included a letter from the applicants’ solicitor to the first respondent, enclosing the originating application, and seeking an undertaking to similar effect.
[20] The written submissions made on behalf of the applicants contend that the question raised by paragraph 5 of the AOA was a “necessary preliminary question”, to be determined before it became necessary to answer the question raised by paragraph 1 of the AOA. That characterisation may not be completely accurate, but it is correct to say that if the declaration sought in paragraph 5 of the AOA had been granted, from the applicants’ point of view it may have been unnecessary to pursue the relief sought in paragraph 1. At a practical level, there is some relationship between the relief sought in each of these paragraphs.
[21] Moreover, while the questions raised by paragraphs 1 and 5 of the AOA are conceptually quite distinct, there is very considerable overlap in the statutory and factual background to these questions.
[22] The second and third respondents do not suggest that the applicants were unreasonable in seeking the declaration identified in paragraph 5 of the AOA. The submissions made by the applicants in support of paragraph 5 of the AOA were of some substance. It might be added that they dealt with important questions relating to the operation of the CM Act, which are not without some difficulties.
[23] The second and third respondents submit that the usual order as to costs should not be made in view of their success in relation to paragraph 5 for a number of reasons. One is that the issue of the power of the CMC is an important one, which was fully litigated. It seems to me that this does not provide a reason to deny the applicants the benefit of the usual order as to costs. Ordinarily, where a party unsuccessful in the litigation has nevertheless had some success, that part of the litigation on which it was successful will be fully litigated. The fact that the matter litigated was an important one seems to me, if anything, to weigh in favour of the applicants. The issue they raised was not trivial or unimportant; and success on it may well have achieved the benefit they were seeking from the proceedings.
[24] The second and third respondents also submit that the issue raised by paragraph 5 was separate and distinct from that raised by paragraph 1. As I have indicated, the questions raised by each of these paragraphs are conceptually quite distinct; but there was considerable overlap in the statutory and factual background. In that sense, I do not consider that the issues were “separate and distinct”. In any event, as I have indicated, such a circumstance would provide an occasion for the exercise of the discretion to deprive the applicants of the benefit of the usual order as to costs; but it is not decisive. In the circumstances of this case, I do not consider that it warrants a refusal of the benefit of such an order.
[25] The second and third respondents submit that the litigation of the issue raised by paragraph 5 of the AOA occupied substantial time in oral argument and substantial attention in outlines. That may be accepted. Nevertheless, that may also be said of the issue raised by paragraph 1 of the AOA. Moreover, because some statutory and factual matters were common to the questions raised by these paragraphs, it does not follow that the time and attention devoted to the question raised by paragraph 5 would have not been required if this paragraph had not been pursued.
[26] A further ground on which the second and third respondents rely is that the applicants failed in respect of paragraph 5, which was a separate claim, and not just an issue in support of the relief claimed in paragraph 1. As I have pointed out, the circumstance that it was a claim, rather than an issue in support of another claim, does not of itself warrant a departure from the usual approach.
[27] In these circumstances, it seems to me that it is not appropriate to deprive the applicants of the benefit of the usual order as to costs, by reason of the fact that I did not grant relief reflecting the declaration sought in paragraph 5 of the AOA.
[28] The fact that injunctive relief was not granted against the first respondent does not show any further lack of success on the part of the applicants. It is a consequence of the position adopted by the first respondent. In those circumstances, it seems to me that this consideration also does not warrant an order which would deprive the applicants of the benefit of the usual order as to costs.
Cost of hearing on evening of 6 July 2010
[29] It will be apparent from the recitation of events set out earlier that it was the conduct of the third respondent late on the afternoon of 6 July 2010 which precipitated the further hearing that evening. No explanation was given for the issue of the press release. It was obviously intended to draw public attention to the first respondent’s failure to comply with the CMC requirement, at a time when the Court was considering the validity of that requirement, and whether the first respondent could personally respond to it.
[30] The primary position adopted by the applicants was to support the application of the first respondent, which was granted. The applicants therefore enjoyed substantial success. They should not be judged too harshly in relation to their oral application for relief of the kind identified in paragraph 6 of the AOA. They had little time to consider and adopt a position to take at the hearing on the evening of 6 July 2010. Moreover, argument about that relief occupied very little time at the hearing.
[31] In these circumstances, and bearing in mind that overall the applicants were successful in the proceedings, I do not think that the applicants should be deprived of the benefit of a costs order for that hearing.
Costs reserved on 28 June 2010
[32] The second and third respondents submit that no order should be made in respect of these reserved costs because the need for directions arose from the immature state of the applicants’ originating application; and, without the application for directions, no agreement would have been reached about a timetable for the delivery of outlines of argument.
[33] The AOA was delivered on 28 June 2010. That reflects the fact that the originating application was filed and served, before the applicants had fully prepared their case. However, it seems to me, that they cannot be criticised for acting with some expedition. The third respondent had provided a tight time limit to the first respondent in which to respond to the CMC requirement. Some attempt had been made in correspondence to avoid the necessity for litigation. Against that background, it seems to me that the fact the application was filed before it was fully prepared does not provide a reason to deprive the applicants of the costs reserved on 28 June 2010.
[34] Nor is it clear that, without the application, the parties would not have agreed about directions. They had already agreed that the applicants should deliver their outline of submissions on 29 June 2010. The difficulty was the position taken by the second and third respondents, namely, that they would deliver their outline of submissions the day before the hearing. The resolution reflected an adjustment of the previous agreement about the delivery of the applicants’ submissions. All of this, it seems to me, simply reflects the fact that the application was a matter of some urgency; and that in those cases, difficulties can be experienced in reaching prompt agreement about procedural steps. I do not consider that the conduct of the applicants in relation to those steps was unreasonable. Rather, the steps taken to bring on the application for directions were simply a consequence of the obvious need to bring the substantive hearing before the Court with some speed.
[35] The applicants having had substantial success in the proceedings, it seems to me that it is appropriate that they should have the costs reserved on 28 June 2010.
Conclusion
[36] I have come to the view that the applicants should not be deprived of the benefit of the usual order as to costs, because they failed in obtaining the relief sought in paragraph 5 of the AOA. I have also concluded that they should have an order for the costs of the hearing on the evening of 6 July 2010, and the costs reserved on 28 June 2010.
[37] Subject to any submissions by the parties as to the form of the order, I propose to make the following orders:
(a)that there be no order as to costs in respect of paragraphs 4 and 6 of the applicants’ amended originating application;
(b)that otherwise the third respondent pay the applicants’ costs of and incidental to these proceedings, including the costs of the hearing on the evening of 6 July 2010, and reserved costs, to be assessed on the standard
Footnotes
[1] (1998) 193 CLR 72 at [67].
[2] See Oshlack at [68]-[70].
[3] Yara Nipro Pty Ltd v Interfert Australia Pty Ltd [2010] QCA 164 at [8].
[4] [2008] 2 Qd R 95 at [21]-[23].
[5] (1975) 13 SASR 4, 16.
[6] (1988) 81 ALR 166, 169.
[7] [2005] NSWSC 1111 at [10]; cited in Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QSC 128 at [17]; and in Neumann Contractors P/L v Peet Beachton Syndicate Limited (No 2) [2009] QSC 383 at [7].
[8] Contrast the decision in Newman Contractors, with para [17]-[19] of Australand.